Stark v The Queen
[2009] WASC 376
•11 DECEMBER 2009
STARK -v- THE QUEEN [2009] WASC 376
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 376 | |
| Case No: | SJA:1115/2009 | 27 NOVEMBER 2009 | |
| Coram: | McKECHNIE J | 11/12/09 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | RICHARD JAMES STARK THE QUEEN |
Catchwords: | Criminal law Sentencing Possession child pornography Very young offender Whether Crimes Act s 19B should have been invoked |
Legislation: | Crimes Act 1914 (Cth) |
Case References: | English v The Queen (Unreported, WASCA, Library No 950355, 6 June 1995) Furber v The Queen [2008] WASCA 233 Gent (2005) 162 A Crim R 29 R v KC [2003] WASCA 144 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : CHIEF MAGISTRATE S A HEATH
Citation : PE 37799 of 2009, PE 37800 of 2009, PE 37801 of 2009 and PE 37802 of 2009
Catchwords:
Criminal law - Sentencing - Possession child pornography - Very young offender - Whether Crimes Act s 19B should have been invoked
Legislation:
Crimes Act 1914 (Cth)
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters & Mr R I M Bannerman
Respondent : Mr J McGrath
Solicitors:
Appellant : Bannerman Solicitors
Respondent : Australian Government Solicitor
Case(s) referred to in judgment(s):
English v The Queen (Unreported, WASCA, Library No 950355, 6 June 1995)
Furber v The Queen [2008] WASCA 233
Gent (2005) 162 A Crim R 29
R v KC [2003] WASCA 144
(Page 3)
1 McKECHNIE J: Mr Stark is only 19. He wants to be a psychologist but his actions have imperilled his chances because he did a very stupid thing. He travelled in and out of Australia during the Christmas vacation last year to visit his parents, one of whom lives in Vietnam and the other in Zambia. On each occasion he travelled with his laptop computer which contained images of child pornography.
2 When he came into Australia he filled in the incoming passenger card and said 'No' to the question: 'Are you bringing into Australia goods that may be prohibited or subject to restrictions?'.
3 He was asked whether there was pornography on his computer and said there was. He was interviewed by Customs officers and was cooperative with them. He said that he came to Australia to commence tertiary studies on 3 October 2008. Before coming to Australia (and while he was still 17) he had allowed a friend to copy pornography onto his computer. He knew the material was pornography but said that he had not viewed it all. He had opened 10 to 15 movies which he had copied onto his computer. When asked why he had not deleted a particular movie containing child pornography, about which he was unaware, he said:
I was actually planning to delete all of them when I was in Vietnam. I didn't want my Dad to walk in and see me because it takes time to delete them but I honestly don't watch those.
4 Mr Stark pleaded guilty to four charges; two of importing prohibited imports, one of making a false and misleading statement to a Customs officer and one charge of exporting prohibited exports.
5 The importation of 3 October 2008 comprised two copies of the same video file of conventional sex scenarios depicting young females who are of or appear to be under the age of 18. Subsequent charges of importing and exporting prohibited publications involved six publications comprising the same two videos and four other publications.
6 Mr Stark has a lot going for him. He is young. He has excellent character references. He cooperated with Customs officers to a very significant degree. His parents were shocked at his action and will not buy him another laptop computer. They have taken other remedial action.
7 Counsel asked for a discharge without proceeding to conviction: Crimes Act 1914 (Cth) s 19B. The main thrust of his submission was the impact on Mr Stark's studies coupled with his youth. The Commonwealth opposed the submission.
(Page 4)
8 The Chief Magistrate summarised all matters but decided that he would impose a fine and a conviction should be recorded:
The nature of the publications is, in my view, so serious that there must be a message, and a clear message, to all who may have such publications in their possession that they can't import or export those items, albeit that they may not be for commercial gain.
9 Although there are two grounds of appeal, the issue that arises is whether the Chief Magistrate made a mistake. Should he have utilised the Crimes Act s 19B because of Mr Stark's youthfulness, career prospects, and other matters of mitigation?
10 Under the Crimes Act s 19B the Chief Magistrate could find that it was inexpedient to inflict any punishment or that it is expedient to release the offender on probation having regard to Mr Stark's character, antecedents or age.
11 Orders under s 19B are not common and have been described as rare, exceptional, special or singular.
12 There is no doubt that youth is a powerful mitigating factor: English v The Queen (Unreported, WASCA, Library No 950355, 6 June 1995). In R v KC [2003] WASCA 144:
Where does that leave us in respect of the sentencing of children? In my opinion, the legislature has for good reason, by the provisions of the Young Offenders Act, left the courts where they have always been in respect of the sentencing of children. A particular approach is taken, different from the sentencing of adult offenders. The general principles of sentencing are modified to make them appropriate to the child. Youth remains a powerful mitigating factor and the younger the offender the greater the mitigation. The punitive element in the sentencing process is given much less weight and the child is to be dealt with within a time frame appropriate to its age. [38]
13 It is submitted that the Chief Magistrate failed to make anything but a passing reference to the age of the appellant. However, he was obviously aware of his age. Mr Stark was right in front of him. The Chief Magistrate also specifically made reference to the possibility that the conviction could be a bar to the appellant pursuing a career at the completion of his studies. But the Chief Magistrate was of the view that the nature of the publications was too serious.
(Page 5)
14 The reason for this view can be found in the judgment of Furber v The Queen [2008] WASCA 233 at [40] and [41]. In Gent (2005) 162 A Crim R 29 Johnson J at [99] and [100] set out general principles noting that possession of child pornography for personal use only is not a victimless crime.
15 The Chief Magistrate imposed a fine somewhat less than might have been imposed because of the substantial costs which were being sought. Obviously, he weighed the amount of the fine in the balance of matters he had to consider.
Conclusion
16 The decision for the Chief Magistrate was a difficult one. On the one hand, there is the powerful consideration of the youth of the appellant and the possible blighting of his career. On the other hand, there is the need for strong denunciation of possession of child pornography for the reasons explained in many cases, and by the Chief Magistrate. I am not persuaded that the Chief Magistrate erred in exercising his discretion to record a conviction and the appeal is dismissed.
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